Every time you do business with someone or look for business, whether a business partner, a banner-swapping deal, or an affiliate program, a host of legal issues arise that you may never have thought about. And since this month's issue focuses on the business of traffic, it might be a good idea to discuss a few legal issues about that.
One axiom of every industry–except, apparently, the Internet–is that it is a good policy to know as much as you’re able to find out about those with whom you are doing business. Internet people, for obvious reasons, rarely know much of anything about many whom they rely upon as critical to their businesses. Sure, you have Hewlett-Packard printers; Dell computers; software from Microsoft, Intuit and Corel; have your bank accounts at Citibank and Bank of America; and, perhaps regrettably, revolve your business around MasterCard and Visa–which are all publicly traded and therefore heavily regulated and carefully scrutinized companies. But you also trade banners with people in Eastern Europe, Southeast Asia, and Central America—people you couldn't locate if your life depended on it.
Dealing with the latter group is where you really need to be careful, and so many webmasters are totally reckless about it. Maybe you find out a little about them in chat rooms. But then how do you know who is doing the posting?
So start with linking. You have a good way of generating traffic, you believe, in banner swapping. You put up some webmaster's banner: "See more of these hotties here." Your surfer–who found your site's clever trade name in a Google search–punches the banner, and you chalk up another traffic point. Well, the surfer happens to be from the Department of Justice and the "hotties" that he finds appear to be about 15 years old. So, the surfer does a Whois on your clever trade name; and the next thing you know an army of feds shows up at your door with a child pornography search warrant. Now you are in handcuffs trying to explain that you purchase all of your content from reputable sources that all comply with 2257 and check for reliable identification, pleading that the banner link has nothing to do with you.
The moral of that story is obvious. If you link elsewhere, make sure that it is obvious to even the most novice surfers that the link will take them to a site that has nothing to do with your company.
Linking is fraught with other perils as well: What if the linked site is not 2257-compliant? Uses ripped-off content? Is operating a scam? Ships to the Bible Belt DVDs that have such outrageous content that you wouldn't sell them in San Francisco? The bottom line is that if it isn't painfully obvious that a link is taking the surfer to a site with which you have no involvement, you could easily find yourself called on the carpet for whatever shenanigans are lurking on the linked site.
But that isn't the end of it. Even if you are careful to identify linked sites as completely separate entities from your company, you still are sending people there. In legal parlance, that can amount to conspiracy, aiding and abetting, or contributory copyright infringement. And because of that, it’s always a good idea to keep tabs on sites with which you swap traffic. It is easy to spot 2257 violations, not quite as easy to spot possible underage performers, and often impossible to spot copyright infringement. But the more obvious the violation becomes, the more likely it is that you can be held responsible for it if you linked to it. Keep your antennae up!
The same is true about those that link to you, although there is somewhat less danger in that. But it is nonetheless a good idea to make sure that they make clear that you are not part of their site. That way, pretty much no matter what kind of a scam they are running, it will be clear that you are not part of it.
Of course, another favorite way to generate traffic is with meta tags. And as with many things, what works best is usually illegal. A dandy way of getting traffic is to use–i.e., infringe–on someone else's famous trademark. One example of this is the marathon battle between Playboy and Terri Welles. Ms. Welles, as it happens, was Playboy's Playmate of the Year in 1981 and wanted to capitalize on that fact to promote her Web page. Because of her unique circumstances, she narrowly escaped total disaster when she used the words "Playboy," "Playmate," and "Playmate of the Year" on her page. Playboy Enterprises, Inc. v. Terri Welles, Inc., 78 F.Supp.2d 1066 (S.D. Cal. 1999), affirmed in part, reversed in part, 279 F.3d 796 (9th Cir. 2002), affirmed, 30 Fed.Appx. 734, 2002 WL 169419 (9th Cir. 2002).
Normally, use of someone's trademark in a meta tag is a type of trademark infringement called "initial interest confusion." [See, e.g., Playboy Enters., Inc. v. Netscape Communications Corp., 354 F.3d 1020 (9th Cir.2004) and Elvis Presley Enterprises, Inc. v. Capece, 141 F.3d 188 (5th Cir. 1998).] Even if a Web page includes a disclaimer that it has nothing to do with the company whose trademark it ripped off in its meta tag, the damage is done when the trademark shows up in the search engine and the surfer goes to the site. It is use of the trademark to draw traffic by virtue of initial confusion that benefits the infringer and is detrimental to the owner of the trademark. The more famous the trademark, the more traffic it will draw, and the more likely the owner of the trademark is spending lots of money "policing" that trademark—that is, making sure that nobody else is using it. Owners of famous trademarks will bring infringement lawsuits to preserve the value of their mark even where doing so will not garner them a profit in the way of damages and attorneys fees.
Finally, while a treatise on the law of deceptive advertising is beyond the scope of this article, obviously advertising and publicity are good methods of generating traffic. But advertising cannot be misleading—and an advertisement can be technically truthful, but nonetheless illegally misleading. For example, if a grocery store advertises "free soup," there cannot be strings attached. One free can of soup for each can you purchase at the normal price is not "free" soup, even though technically you might say the second can is free. Objectively, what you are really getting is two cans of soup at half the regular price of one. Similarly, if a merchant always sells a product at a particular price, it might be accurate and fair advertising for the merchant to say that it is half of the "suggested retail price," but it really is not "on sale" because that suggests that the normal selling price by that merchant is higher than this week's price.
There are as many misleading advertising scams as there are hucksters out there to think them up. As a result, there are volumes of state and federal rulings on what advertising is on which side of the "deceptive" line. But think about this: Under California law, for example, an act of "unfair competition," which is illegal, is defined as "any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising." Cal. Bus. & Prof. Code. §17200. Note that it goes beyond "unlawful" and "fraudulent" business practices to include "unfair" ones, and that it goes beyond "deceptive" and "untrue" advertising to include "unfair" and "misleading."
So if you think you have a really clever advertising or business gimmick, sit down with a trusted friend. Tell him or her of the system, and say that one of your competitors is doing it (which is more likely to get a truthful response than if you say you are doing it). Then ask if it sounds fair. If the answer is not an unequivocal "yes," you should propound the same series of questions to a couple of other friends and perhaps rethink your plan.
Those are some key legal pitfalls about generating traffic. Certainly there are more, which is a good reason to have your attorney watching over your shoulder and reviewing your websites.
(Clyde DeWitt is a partner in the Los Angeles-based, national law firm of Weston, Garrou, DeWitt & Walters. He can be reached through AVN Online's offices, at his office at 12121 Wilshire Boulevard, Suite 900, Los Angeles, CA 90025 or over the Internet at [email protected]. Readers are considered a valuable source of court decisions, legal gossip, and information from around the country, all of which is received with interest. Books, pro and con, are encouraged to be submitted for review, but they will not be returned. This column does not constitute legal advice but rather, serves to inform readers of legal news, developments in cases, and editorial comment about legal developments and trends. Readers who believe anything reported in this column might impact them should contact their personal attorneys.)
